[2020] KEHAT 113 (KLR)

REPUBLIC OF KENYA

IN THE HIV & AIDS TRIBUNAL

AT NAIROBI

H.A.T. CAUSE NO. 005 OF 2018

PNK..............................................CLAIMANT

-VS-

JALARAM LABORATORY, DIAGNOSTIC

(RADIOLOGY SERVICES)...RESPONDENT

JUDGEMENT

A. Introduction

1. By Statement of Claim dated 27th February 2018, the Claimant seeks judgment against the Respondent for:

a. A declaration that the claimant’s rights were violated;

b. General damages;

c. Cost of the suit;

d. Interest on (b) and (c) at Court rates;

e. Any other relief that the Tribunal deems fit to award.

2. The Claimant’s case is that on 23rd December 2015, the Claimant was taken to the Respondent medical facility by her former employer’s daughter (FD) for medical examination and treatment, following her short illness. While at the Respondent facility, the Claimant was examined by the Respondent’s employee, doctor and/or medical practitioner. This person then informed the Claimant that she had instructions from FD to test and ascertain the Claimant’s status, although the person never specified the type of test that she intended to carry out.

3. Subsequently, the said medic, without the Claimant’s consent, authority and/or permissions, took blood samples to carry out the test. Later, a man of Asian descent called the Claimant into his office, where FD was seated, and proceeded to inform the Claimant that she is HIV Positive. The Claimant was shocked and surprised on receiving the news. FD, on the other hand, was agitated and furious and kept asking the Asian man whether the Claimant might infect her baby.

4. The Claimant avers that following the said disclosure of her HIV test results by the Asian man, in the presence of FD, the Claimant was chased away from her place of employment in an inhumane manner and without due regard for her dignity as a person. As a consequence of the Respondent’s actions, the Claimant has suffered loss and damages in irreparable measure, and the Claimant holds the Respondent fully and wholly liable for the same.

5. The Respondent filed its Statement of Response dated 4th May 2018, in which the Respondent denies the allegations by the Claimant. The Respondent avers that the Claimant took herself to the Respondent facility and paid cash for the laboratory tests. She was not accompanied by the Claimant’s former employer’s daughter, FD, and neither was FD involved in the said tests. The Respondent further avers that there are no female doctors employed at the facility. Blood samples are collected by the laboratory technicians on instructions of the attending doctor.

6. The Respondent avers that the results of the tests were communicated verbally to the Claimant in person, and the Claimant was counseled thereafter. This was done by the attending doctor. No one else was present at the time.

B. The Evidence

7. The Claimant began her case on 5th October 2018. She testified that she previously worked along [Particulars Withheld] in Nairobi, where she had been working for M.D. from 1996 to 2015. In 2015, her employer then instructed her to work for his daughter, FD, who had just delivered a baby. The Claimant then took on the role of nanny.

8. The Claimant adopted her Witness Statement dated 27th February 2018 and relied on the same. In summary, on 23rd December 2015, the Claimant was taken to the Respondent facility by FD., following a short illness by the Claimant. FD made some payment at the facility and blood was drawn from the Claimant for testing. She testified that the blood was drawn by a female doctor, after which the Claimant was asked to return later for the results.

9. As the Claimant waited at the reception, FD went into the doctor’s office. The doctor was male and of Asian descent. The Claimant did not know the said doctor’s name, but he was different from the one who drew blood. FD then summoned the Claimant into the office. Both FD and the doctor spoke in English, which the Claimant understood very little of. It was at that point that the doctor said something that shocked FD, who got up and instructed the Claimant to get up and leave. It is the Claimant’s testimony that although she understood very little English, she understood that the doctor had said that the Claimant had AIDS.

10. In her Witness Statement dated 27th February 2018, the Claimant states she was summoned into the doctor’s office by the Asian man. Upon leaving the office, she was issued with a receipt number *****, which she adduced as evidence. Notably, the receipt is for payment of Kshs 1,200/- received from the Claimant in respect of lab services.

11. In her Witness Statement, the Claimant further states that upon arriving at F.D’s house, FD and her husband ordered the Claimant to leave the house immediately. They even went ahead to throw the Claimant’s belongings out of the house. A week later, the Claimant went back to her original employer’s house (FD’s mother), but she, too, chased the Claimant away. The Claimant blames FD and the Respondent for testing her for HIV without her consent.

12. On cross examination, the Claimant reiterated that it was FD who took her to hospital. This was because the Claimant had been experiencing some fatigue since she had been working both days and nights. At the hospital (Respondent facility), blood was drawn from the Claimant and FD then left. The blood was drawn by a female medic. There was no one else in the room. It was the Claimant’s testimony that she got back home from the Respondent facility, she found her belongings outside. FD fired her, and refused to give the Claimant the results of the test.

13. Following the Claimant’s Application dated 10th September 2019, the Claimant got the opportunity to re-open the case, which had proceeded and closed on 2nd August 2018, and to call her final witness, FD. FD confirmed that the Claimant had been an employee for her parents for over 20 years. FD’s parents are now deceased.

14. Sometime in 2015, FD was blessed with a baby and the Claimant, who was working for FD.’s mother at the time, would assist FD from time to time with the household chores and the baby. This was not on a daily basis, but rather whenever FD required the extra help and FD.’s mother could spare the Claimant. FD testified that the last time that the Claimant came over to assist her was sometime in December 2015, before Christmas. When FD required an extra set of hands in January 2016, she approached her mother, who informed her that the Claimant had not been feeling well and had requested to go home and rest.

15. It was FD’s testimony that she related well with the Claimant and had known her for a very long time. At some point, the Claimant complained of headaches, fever and FD advised the Claimant to seek medical attention. FD, however, did not follow up to know whether the Claimant had actually sought medical attention.

16. FD testified that the Claimant’s salary would be paid by FD’s mother. She was not aware of the amount. She reiterated that the Claimant would only work for her whenever FD’s mother could spare her.

17. FD denied knowledge of the Respondent facility or that she accompanied the Claimant to the facility. She was not present when the test results were presented to the Claimant, and neither did she fire the Claimant.

18. On examination by Mr. Dondo for the Respondent, FD indicated that she was not aware of when exactly the Claimant left employment except for the information she received from her mother. Further, she is not aware of any claim against herself or her mother.

19. In its defence, the Respondent called one witness, Dr. RS, who has extensive experience in medical practice. RW1 testified that he has been in private practice for over 15 years. He is currently attached to the Respondent facility, which offers medical treatment at subsidized rates. The doctor, who has been at the Respondent facility since 2014, works from 9am to 1pm, during which time he attends to numerous patients, about 30 per day.

20. RW1 went on to elaborate the procedure conducted at the facility once a patient walks in for treatment. A patient pays Kshs 200/- for the patient file. This payment entitles the patient to consultation and basic medication. Once the payment has been made, the patient then proceeds to the triage nurse. At the time material to this case, there were only 2 nurses at Triage, and RW1 was the only attending doctor in the morning. A different doctor would attend the afternoon sessions. There was no female doctor on staff.

21. After triage, the patient proceeds to see the doctor, alone. RW1 testified that the Claimant herein weighed only 45kgs yet was 50 years old. The Claimant presented with headache, palpitations and weight loss, and requested a full checkup. RW1 recorded the complaints and recommended several tests, including HIV and Hepatitis.

22. After the tests are conducted, the patient is then counselled and then they proceed for the HIV/AIDS tests. From the lab, the patient returns with a sealed envelope which contains the results. RW1 further testified that the doctor then opens the envelope, in the presence of the patient, and interprets the results one by one. The results are recorded in the book containing the patient’s attendance record (Respondent’s Exhibit 1)

23. It was RW1’s testimony that upon explaining the results to the Claimant, he referred her to St. Mary’s Hospital in Lang’ata, which is a very good facility. The Claimant did not return to the Respondent facility thereafter.

24. On cross examination, RW1 confirmed that the payment made by the Claimant was not made to him. All that RW1 did was to make a diagnosis and record it. A record is kept for every patient who comes into the clinic. He clarified that the Claimant visited the clinic alone. RW1 reiterated that the notes indicate that he received the patient when she came to the hospital, although they do not specifically state “I received the patient.”

25. RW1 confirmed that he is familiar with the provisions of the HIV & AIDS Prevention and Control Act, 2006 (hereinafter HAPCA), particularly with respect to consent prior to testing. He confirmed that he sought the Claimant’s express consent, although the same is not indicated on the form. The consent was verbal. The Respondent closed its case on 2nd August 2019.

26. Having applied to re-open the case, the Claimant got the opportunity to cross examine RW1 on 28th February 2020. RW1 reiterated that the Claimant was charged for the lab tests and for consultation, inclusive of any medication. The payment was not made to RW1 but to the cashier. RW1 simply made the diagnosis and recorded the same in the document, which bears his signature but not his name.

27. RW1 testified that other tests were conducted on the Claimant, including Malaria and Hepatitis B. He confirmed that he was aware that prior to conducting an HIV test, one must seek the consent of the patient, which he did, although the consent was given by the Claimant verbally. He confirmed that the test was conducted at the laboratory. He further confirmed that the Claimant was conscious when she came into the Respondent facility, but would not be a position to know whether or not the Claimant was conscious when the test was being conducted since he was not in the lab.

28. RW1 testified that once the results were ready, they handed the same to the Claimant, although he did not record that the results were handed over to the Claimant. The Claimant was counselled although the same is not acknowledged anywhere by the Claimant.

C. Issues for Determination

29. In the Claimant’s submissions dated 17th March 2020, the following are enumerated as the issues for determination by this Tribunal:

i. Whether the Respondent tested the Claimant for HIV & AIDS;

ii. Whether the Respondent obtained prior informed consent of the Claimant before testing her for HIV & AIDS;

iii. Whether the Respondent administered and/or provided the Claimant with the mandatory pre and post HIV test counselling therapy;

iv. Whether the Respondent disclosed the Claimant’s HIV test results to a third party; and

v. Whether the Respondent’s actions led to the Claimant’s dismissal from employment.

30. The Respondent had filed its earlier submissions on 13th September 2019 and subsequently, upon re-opening of the case by the Claimant, filed Supplementary Submissions via email on 21st May 2020.

31. Having analyzed the evidence by the parties and the submissions filed, we find that the issues for determination by this Tribunal are:

i. Whether the Respondent obtained prior informed consent of the Claimant before testing her for HIV;

ii. Whether the Respondent administered and/or provided the Claimant with the mandatory pre and post HIV test counselling therapy;

iii. Whether the Respondent disclosed the Claimant’s HIV test results to a third party; and

iv. Whether the Respondent’s actions led to the Claimant’s dismissal from employment

D: Legal Analysis

i. Whether the Respondent obtained prior informed consent of the Claimant before testing her for HIV

32. Section 14 (1) of HAPCA provides as follows:

Subject to subsection (2), no person shall undertake an HIV test in respect of another person except –

a. With the informed consent of that other person.

33. On the issue of whether the Respondent tested the Claimant for HIV, it is clear from all parties that an HIV test was conducted on the Claimant. This issue is not in contention. What is in contention, however, is whether the Respondent obtained informed consent from the Claimant prior to testing.

34. In expounding on the meaning of ‘informed consent’, the Claimant relied on the case of CNM –vs- The Karen Hospital Ltd, HAT No. 008 of 2015 (unreported), in which the Tribunal addressed itself to the meaning of informed consent.

“Informed consent refers to the consent given with the full knowledge of the risks involved, probable consequences and the range of alternatives available…in medical treatment requiring invasive procedures, the doctor or healthcare personnel are required to disclose sufficient information to the patients to enable them give an informed consent. Informed consent for HIV testing means that the person being tested agrees to undergo the test on the basis of understanding the testing procedures, the reasons for the testing, and is able to assess the personal implications of having or not having the test performed. The requirement of informed consent is intended to uphold the dignity of the patient. It proceeds on the theory that the patient does not lose his dignity simply because he has fallen sick or because he does not know what his treatment will entail, which treatment option is better than the other, of others, and what risks are associated with any or all the available treatment options….”

35. In arriving at whether or not a person gives informed consent, the Tribunal, in the cited case and in the case of J.K.O –vs- Nairobi West Hospital Ltd (2018) eKLR, enumerated the various issues that must be discussed openly with the person prior to testing. These include:

a. What is an HIV test?

b. What is the purpose of HIV testing?

c. What are the limitations of HIV testing?

d. What are the risks involved (medical and non-medical risks)?

e. What are the results expected?

f. What does HIV diagnosis mean and what supports are available?

g. What does negative HIV test mean?

h. What confidentiality and privacy issues will arise and how they will be dealt with?

i. What are the implications of not being tested?

36. In her submissions, the Claimant herein argued that the onus of proving that the informed consent of the Claimant was obtained before the HIV testing lies on the Respondent. She contended that in order to sufficiently prove that the informed consent of the Claimant was obtained, the Respondent is required to prove that it satisfied the ingredients set out in the Karen Hospital Ltd case (supra), and that proving the strict adherence of the said requirements must be by way of documentary evidence. The Claimant relied on the well-established principle of law that he who makes an allegation has the burden of proving the existence of the allegation.

37. On the other hand, the Respondent submitted that there is no requirement under the Act that an informed consent has to be written or that the patient ought to sign a consent form before the HIV test is conducted. The Respondent relied on the case of B.K. –vs-s J.D Patel & Another (2014) eKLR.

38. The Tribunal is guided by the case of Karen Hospital Ltd –vs- C.N.M; HCCA No. 301 of 2016, the High Court opined thus:

“..it is clear that the Tribunal shifted the burden of proof to the hospital despite finding that such burden lay with C. As rightly submitted by the hospital, it is trite that the burden of proof of any fact or allegation is one the one who alleges.”

39. Just as was stated in the case hereinabove, this Tribunal agrees with the Respondent’s submissions herein regarding the burden and standard of proof that are required of the Claimant herein. On the one hand, the Claimant avers that her consent was not sought prior to the testing. On the other hand, the Respondent presented evidence herein of the Claimant’s medical records, signed by RW1, which indicate as follows: “ Pt counselled and verbal consent given.”It was the Claimant’s testimony that the Doctor spoke in English and she understood very little of it. This evidence in itself seems to contradict since the Witness Statement by the Claimant indicates that the Doctor spoke in Hindu language. What is apparent, therefore, is that the Claimant did not understand what was going on.

40. What is clear from the evidence before the Tribunal is that the Claimant’s consent may have been sought. But the issue is whether the said consent was informed. To determine this, the Tribunal reverts to the ingredients of informed consent as enumerated in the case of CNM –vs- The Karen Hospital Ltd (supra).From the testimonies of the Claimant and RW1, it is evident that although the Claimant may have verbally agreed to the tests being conducted, she may not have been aware of the risks, expected results, implications and/or consequences of an HIV test, which is what constitutes informed consent.

41. In the premise, we find that the Respondent failed to appreciate and discharge its obligation to obtain informed consent from the Claimant for the HIV testing, contrary to section 14 of HAPCA.

ii. Whether the Respondent administered and/or provided the Claimant with the mandatory pre and post HIV test counselling therapy

42. The Claimant submitted that the Respondent did not administer an HIV pre-test and post-test counselling as required under section 17 of HAPCA. The Claimant relied on the cases of Rahab Micere Murage (suing as a representative of the estate of Esther Wakini Murage) –vs- A.G and 2 Others (2012) eKLR as well as B.O. –vs- Meridian Equatorial Hospital; HAT No. 005 of 2013, although the latter case was not attached for the ease of our reference. With respect to the latter case, the Claimant drew our attention to the Tribunal’s opinion as follows:

“ The provision of section 17 of the HIV & AIDS Prevention and Control Act on pre-test and post-test counselling, which was couched in mandatory terms, was extremely important especially in view of the socio-cultural implications of HIV & AIDS in Kenya. It served a very useful purpose and could not be taken lightly in medical and other facilities that conducted HIV testing. Pre-test and post-test counselling were not mere cosmetic requirements.

The duty of pre-test and post-test counselling lay squarely in the shoulders of all healthcare providers and had to be complied with. Failure on the part of any healthcare provider to comply with such a duty amounted to a constitutional violation of the right to life as enshrined in Article 26 of the Constitution, the right to health under Article 43 of the Constitution and the right to access to life prolonging information under Article 35 of the Constitution.”

43. The Respondent, in turn, submitted that the Respondent’s document clearly shows that once the Doctor recommended the test to be conducted, and before the tests were done, the Claimant was counselled. Once the results were out and the Claimant having been found to be HIV positive, post-test counselling was administered to the Claimant. The Respondent’s only undoing is that the recording is not in an exquisite form.

44. The Respondent relied on the case of JKO –vs- Nairobi West Hospital Ltd (supra),where the Tribunal opined as follows:

“…The obvious result of this is that the Tribunal has to weigh the word of the Claimant who insists that he was not counselled, against the documentary evidence produced by the Claimant himself and the testimonial evidence of the Respondent’s witness to the contrary. The proof threshold furnished by the Claimant does not meet the balance of probabilities standard, since it is merely the Claimant’s allegations against the evidence presented indicating the contrary. We, therefore, find that the Claimant has failed to prove his case to the requisite standard of proof and dismiss the Claimant’s allegations to the effect that he was not given pre-test and post-test counselling.”

45. The Claimant herein asserts that she was not counselled before or after the test was conducted on her. The Respondent, on the other hand, produced the Claimant’s Medical Records, signed by the Doctor, which indicate that the Claimant was pre and post-test counselling was administered. The records, however, were not signed by the Claimant. This documentary evidence was not refuted by the Claimant. In the case of CNM –vs- Karen Hospital Ltd (supra) where similar facts were adduced, the Tribunal opined as follows:

“The foregoing notwithstanding, we opine that the Claimant failed to strictly prove that she was not given pre-test and post-test counselling. This is because the claimant failed to prove her allegations to the requisite standards. The proof threshold furnished by the claimant did not meet the balance

46. This Tribunal is further guided by the appeal case of Karen Hospital Ltd –vs- CNM in which the High Court opined as follows:

“The inevitable conclusion to be drawn from the extract is that the informed consent of the Respondent was not obtained prior to undertaking the initial test. This automatically means that pre-test and post-test counselling was not conducted at the diagnosis stage.”

47. Drawing from these remarks by the High Court, and in view of this Tribunal’s findings with regard to the informed consent, it goes without saying that if the Claimant did not give her informed consent, then it is unlikely that she was counselled prior to the test being conducted, and as such, this claim succeeds.

iii. Whether the Respondent disclosed the Claimant’s HIV test results to a third party

48. The Claimant submitted that HIV results ought to be kept private and confidential except when the patient is a child accompanied by a parent or guardian. It is the Claimant’s contention that the Claimant was dismissed from her employment with Ms. FD once Ms. FD came to learn of her status. It is inferred that Ms. FD is the third party to whom the test results were disclosed and that the said disclosure was by the Doctor.

49. In its submissions dated 12th September 2019, the Respondent argued that since the Claimant failed to cross examine the employer or adduce any supporting evidence that the employer was present when her status was disclosed, that there is no satisfactory evidence that the Respondent disclosed to the Claimant the results of the test, leave alone the presence of the employer at the hospital.

50. From the evidence before this Tribunal upon re-opening the case, the Claimant called Ms. FD to the stand, who testified that she was not the employer of the Claimant, but the Claimant would work for her occasionally, whenever the Claimant’s employer could spare her. One of the Claimant’s documents was her employment card, which indicated her employer as Mr. D, the father to Ms. FD. Ms. FD. testified that she did not pay the Claimant any wages, since her mother was the Claimant’s employer and not her.

51. Further, RW1 testified that the Claimant came into the consultation room alone. Ms. FD corroborated this evidence by denying accompanying the Claimant to the hospital. The Claimant did not produce any other evidence and/or corroborate her evidence that she was accompanied to the hospital. All receipts, allegedly paid by Ms. FD, were in the name of the Claimant. Without any evidence to the contrary, this Tribunal is of the view that there was no other person in the consultation room when the results were disclosed to the Claimant.

52. In the case of S.M -vs- E.N.A; HAT NO. 018 of 2018 (unreported), this Tribunal opined thus:

“It is trite Law that the onus of proof is on he who alleges. To obtain relief for violations under HAPCA, particularly that of unlawful disclosure of status, the Claimant must demonstrate the manner in which the Respondent violated these provisions. It is noteworthy that in this instance, the Claimant’s testimony was uncorroborated. Although the Claimant made reference to people whom the disclosure was made, including neighbors and her landlady, none of these individuals was called as a witness to corroborate the Claimant’s testimony that it was the Respondent who disclosed the Claimant’s status to them.”

53. In the absence of any witness to corroborate the Claimant’s story of unlawful disclosure, the same remains a mere allegation. Ms. FD denied accompanying the Claimant to the hospital, or that she was in possession of the any document indicating the Claimant’s status. Further, we note that the Claimant’s conclusion that there was disclosure of her status emanates from the assertion that she was terminated as a result of her status. This Tribunal finds that the Claimant has failed to prove disclosure of the results to any third party without her consent, thus the claim must fail.

iv. Whether the Respondent’s actions led to the Claimant’s dismissal from employment

54. It is the Claimant’s submission that the only reason the Claimant was dismissed from her employment was because of the Respondent’s negligent actions. Were it not for the respondent’s negligence, the Claimant would still be performing her duties at Ms. FD’s house.

55. The Respondent submitted that there is no nexus between the Claimant’s termination at her place of work and the Respondent conducting the test to determine her HIV status. In its submissions of 12th September 2019, the Respondent argued that at the time of her termination, the Claimant was 55 years old. There could be so many reasons, age being a major factor, as to why she left employment, and only the employer would have been in the best position to enlighten the Tribunal on the same.

56. In her testimony, Ms. FD was very clear. She was not the Claimant’s employer and neither did she pay her salary. She would use the Claimant’s services once in a while, whenever she needed an extra hand and whenever her mother could spare the Claimant. Sometime in January 2016, when she requested assistance by the Claimant, Ms. FD was informed by her mother, the Claimant’s employer, that the Claimant had requested to go home and rest because she was tired. It is rather unfortunate that Mrs. D is now deceased, as she would have offered a better insight as to why the Claimant left employment. It is notable that the Claimant did not and has not preferred any proceedings against her former employer, her estate or Ms. FD for wrongful termination.

57. In view of the foregoing, we concur with the Respondent’s submissions. The Claimant has failed to prove proximate connection between the Respondent conducting and HIV test on her and the termination of her employment. Thus, this claim must fail.

E. Determination

58. On the issue of whether the Respondent obtained the prior informed consent of the Claimant before conducting the HIV test, pursuant to the provisions of section 14 of HAPCA, we find that the Respondent did not obtain the prior informed consent of the Claimant , thus the claim succeeds.

59. On the issue of whether the Respondent administered and/or provided the Claimant with mandatory pre and post HIV test counselling pursuant to the provisions of section 17 of HAPCA, we find that the claim succeeds.

60. On the issue of whether the Respondent disclosed the Claimant’s HIV status to a third party, we find that the Claimant failed to prove the same, thus the claim fails. Subsequently, the claim that the Respondent’s actions led to the Claimant’s dismissal from employment fails.

61. In conclusion, this claim is determined as follows:

i. Judgement is hereby entered in favor of the Claimant against the Respondent for the sum of Kshs 250,000/- by way of general damages.

ii. The above sum shall attract interest at court rates from the date of this judgment until payment in full.

iii. Each party shall bear its own costs.

Dated and signed in Nairobi this 29th day of MAY 2020

Delivered at Nairobi this 29th day of MAY2020

Helene Namisi (Chairperson) ………………..…………….

Melissa Ng’ania ………………………….......

Justus T. Somoire ………………………………

Dr. Maryanne Ndonga ………………………............

Abdullahi Diriye ……………………………….

Tusmo Jama ………………………………..

Dorothy Kimeng’ech ………………………………..